The bipartisan team comprised of representatives of President William Ruto and opposition leader Raila Odinga avoided recommendations that would have automatically taken Kenya to a referendum, and threw the ball back to the principals’ court on the thorny issue of cost of living.
The team, officially known as the National Dialogue Committee and co-chaired by Wiper Democratic Movement party leader Kalonzo Musyoka and National Assembly Majority Leader Kimani Ichung’wah, however, made far reaching recommendations on amendments to the law and the Constitution.
This team wants a panel of six experts, three from each side, to be constituted 21 days after the adoption of the report by Parliament to audit the August 2022 General Election.
“Within 21 days of the adoption of this report by Parliament, the leadership of the majority and minority coalitions shall appoint a panel to evaluate the 2022 electoral process. The Panel shall consist of six experts. The majority and minority parties or coalition of parties shall each nominate three experts. The Panel shall jointly appoint a reputable firm or a consortium of firms to undertake the evaluation. If there is no agreement on the joint appointment of a firm, each side of the panel shall appoint a reputable firm to undertake the evaluation. The two firms shall coordinate the evaluation process,” the report says.
While the report details the membership of the audit teams, it fails to say what the parameters of service are and whether it will include an actual assessment of votes cast.
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The team also recommended the formation of the offices of the Leader of Opposition, being the person with the second highest number of votes in a presidential election, and that of Prime Minister/Prime Cabinet Secretary, being a presidential appointee approved by Parliament.
“The functions of the Leader of Opposition shall be to represent the interests of the Opposition; provide an alternative policy agenda and constructive criticism of government policies; promote transparency, accountability and good governance in public affairs; foster cooperation and constructive engagement between the government and opposition in the pursuit of national interests; participate in state ceremonial functions and international parliamentary events on behalf of the Opposition; and promote public awareness and understanding of the role of opposition in a democratic state,” the report says.
While if adopted, the office of the Leader of Opposition is a shoo-in for Mr Odinga who had the second highest votes, the committee recommends that another person designated by the party with the second highest number of votes can be declared Leader of Official Opposition.
On cost of living, the biggest point of concern for Azimio, the team rejected proposals by the opposition coalition to cut some taxes it said contributed to the skyrocketing cost of basic commodities.
These include a proposal to reduce value added tax on fuel from the current 16 to eight per cent, as well as the scrapping of the Housing Levy.
They, however, agreed on a recommendation to reduce road maintenance levy and anti-adulteration levy by Sh5 and Sh3 per litre, respectively.
Also, the team recommended a reduction of all travel budgets by 50 per cent, and for allowances and per diems to be cut by 30 per cent.
The team has recommended the establishment of a Ward Development Fund and the raising of equitable share to counties from the current 15 to 20 per cent of the most recent audited revenue—both seen as twin wins for the devolved units.
It also recommended the entrenchment of the National Government Constituency Development Fund, the National Government Affirmative Action Fund and the Senate Oversight Fund.
In its report, the team wants Woman Representatives seats doubled to 94—two from each of the 47 counties—as a means to address the gender equality requirement in the Constitution.
In the alternative, the team wants Kenyans to nominate as many women as are required to ensure that no gender has more than two-thirds of the elective positions at the national level.
County assemblies have already met the requirement using the same provision.
“The Committee recommends that the Multi-Sectoral Working Group on the Realisation of the Two-Thirds Gender Principle under the Ministry of Public Service, Gender and Affirmative Action to finalize its work, and recommend a framework of implementation of two-thirds gender principle and submit its report to Parliament for consideration,” the report says.
The working group, the committee says, should consider two options. First option? “Adopt the principle under Article 177 as follows — (a) on the basis of proportional representation by use of party lists as provided for under Article 90; and comprise candidates who stood for election with precedence being given to candidates who received the greatest number of votes,” the report says.
The second option, the team said: “Double the number of women seats from the counties to the National Assembly from forty-seven (47) to ninety four (94) while retaining the 290 elected from the constituencies and the twelve (12) nominate from the party lists. Use the top-up list to address any shortage in the number of women in the National Assembly that may arise by application of the formula.”
Parliament has gone through 12 different bills to find a formula for the gender principle, all having failed to garner the numbers needed to pass it in Parliament.
In 2020, then Chief Justice David Maraga advised the President to dissolve Parliament in line with Article 261 (7) for failing to enact legislation required to implement the two thirds gender rule.
At the same time, the committee, in its report, rejected a bid to increase the number of counties by 23, which would have brought the number of devolved units to 70.
Instead, the team wants the National Cohesion and Integration Commission (NCIC) to investigate claims of perceived marginalisation and discrimination of key minority communities that sought to have new counties carved out for them.
The new counties the committee was told to create were: Wajir South, Sabaot, Mwingi, Kuria, Teso, Mount Elgon, East Pokot, Gucha, Suba, Ijara, Nakuru West, Turkana North, Turkana Central and Turkana South, Thika, Kiambu East, Kiambu West, Maragwa, Mbeere, Kieni, Molo, Suba and Embakasi counties.
“Most of the appeals for creation of new counties were based on claims of marginalisation and discrimination of minority communities in some counties in terms of development, resource allocation, services delivery, employment opportunities and county leadership among other reasons,” the committee observed in its report dated November 25.
It added: “Establishment of counties along ethnic groupings poses a risk of ethnic balkanisation and further polarisation of the country.”
It added that all that can be done is the expected boundaries delimitation to look into the issues.
On boundaries delimitation, the committee wants the Constitution amended to allow Parliament to alter the 12-year deadline that the electoral commission has to review boundaries of constituencies and wards.
At the same time, the committee, which tabled its report on November 25, wants Parliament to enact the County Boundaries Bill within the next six months to provide legal framework on review of county boundaries.